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Gitin, 47

GITIN 47 (2 Nisan) - Dedicated l'Iluy Nishmas: R' Zev ben R' Aharon (Milner) zt'l, the Rav of Serenik (Byelorussia) by his great-granddaughter, Chani (Pogrow) Shaw and family.


QUESTION: The Mishnah teaches that when a person sells himself and his children to Nochrim, we do not redeem him, but we redeem his children after he dies. The Gemara adds that we even redeem him the first two times that he sells himself, and only after the third time do we stop redeeming him. The Gemara relates an incident involving a man who sold himself to cannibals ("Luda'i") and then asked the Rabanan to redeem him from them. Rav Ami at first ruled that he should be redeemed based on a Kal v'Chomer: If we redeem children after their father's death, then it must be that it is because we are concerned that they not assimilate ("Kilkul"). If we are worried about assimilation, then certainly we should be worried about the very *life* of the captive, and since the captive is in danger of being killed and eaten, it should be permitted to redeem him.

The CHASAM SOFER asks a number of questions on this Gemara. First, what is the basis for this Kal v'Chomer? The reason why we do not redeem the father himself, but we do redeem the children after the father's death, is because if we redeem the father, he will keep selling himself and thereby bankrupt the communal funds by relying on the community to redeem him each time. Therefore, after he sells himself three times, we penalize him and do not redeem him. This is evident from the fact that we redeem him the first two times, and then we stop after the third time, as well as from the fact that this appears as part of a series of Mishnayos discussing Gezeiros that were made because of "Tikun ha'Olam."

The reason we do not redeem his children as long as he is alive is presumably because he will just sell them again. Therefore, after his death we may redeem them.

Why, then, does Rav Ami suggest that we should redeem the father to prevent assimilation and certainly to prevent his death? There is good reason for not redeeming the father, despite the possibility of assimilation or death, and that is "Tikun ha'Olam" -- he will sell himself again and rely on communal funds to redeem him. How do we know that the fear of assimilation and the fear of death override "Tikun ha'Olam?"

Second, the Midrash (Bamidbar Rabah 21:4) tells us that one who causes a person to sin is worse than one who kills another person. Why, then, does Rav Ami assume that if we redeem the children to prevent them from sinning, we certainly redeem the father to prevent him from being killed? Sinning is considered *more* severe than killing!


(a) If the Rabanan do not redeem the father after he sells himself for the third time because of "Tikun ha'Olam," in order that he not continue selling himself, then for the same reason they should not redeem the children even after his death -- in order to prevent the father from selling the children. If the father knows that the children will be redeemed upon his death, he will not refrain from selling them! Therefore, it must be that the only reason the Rabanan instituted that the children be redeemed after their father's death despite the "Tikun ha'Olam" is in order to prevent them from assimilating. They do not redeem the father because he is older and the Rabanan are not afraid that he will assimilate. However, if there would be a fear of assimilation or death to the father, that would override the "Tikun ha'Olam" and we would redeem him.

(Although it seems unfair to the children not to redeem them when the father was the one who sinned by unjustly selling them (indeed, the father does not even have the rights to sell them; if anything, selling is an act of Gezeilah), nevertheless we find similar Takanos when it is necessary for "Tikun ha'Olam," to maintain the welfare of the community, such as the Takanah on 45a Takanah not to redeem captives when the captors ask for too much money. Although Beis Din will not redeem the children during the father's lifetime, any relatives of means certainly would be permitted to redeem the children.)

(b) Certainly the person who causes someone else to sin is worse than one who kills someone, because his damage is being done constantly: the person whom he taught to sin continues to sin throughout his life. Death, in contrast, occurs only once.

However, from the perspective of the victim, death is certainly a worse fate that sinning, because it is irreversible, while sinning is reversible since a person can eventually do Teshuvah.

In addition, in the case of children who were sold as slaves to Nochrim, although the sins that they will commit as a result of assimilation will be repeated many times, their sins are not as severe because they are considered to be like "Tinokos she'Nishbu," babies taken captive and never taught about keeping the Mitzvos, and it is not their fault that they learned to sin. (See KESAV SOFER, Even ha'Ezer 46, who also discusses his father's questions at length.)

QUESTION: Rebbi Elazar learns that land in Eretz Yisrael owned by a Nochri is exempt from Terumos u'Ma'aseros. Rabah challenges him from a Mishnah in Pe'ah that teaches that Leket, Shikchah, and Pe'ah of a Nochri's field are *Chayav* in Ma'aser. Rebbi Elazar answers that the Mishnah is referring to Leket that a Nochri collected from a Jewish-owned field. Even though Pe'ah is normally exempt from Ma'aser (because there is a Limud that teaches that any produce that is free for all to take is exempt from Ma'aser; RASHI DH Leket), if a Nochri collects it, though, it is obligated in Ma'aser, since a person does not make his Pe'ah into Hefker for a Nochri to take.

Once the produce is already designated as Pe'ah, how does its status become undone when a Nochri takes it? It is true that a Nochri is not entitled to take it, just like a Jew is not entitled to take it if he is not an Ani. Nevertheless, it should simply be considered theft when the Nochri (or a wealthy Jew) takes it! How can it revert back to a state of being normal, non-Pe'ah produce?

In addition, when a Nochri takes all of the Pe'ah, will the Jewish owner of the field have to separate Pe'ah a second time because its status of Pe'ah was retroactively removed? (RABEINU KRESKAS, MISHNEH L'MELECH, Hilchos Terumos 2:9)


(a) The MISHNEH L'MELECH proves from this Gemara that Pe'ah does not become exempt from Ma'aser until an Ani takes it. Before the Ani takes it, it is still obligated in Ma'aser. That is why the produce that the Nochri collects is obligated in Ma'aser. The Mishneh l'Melech says that the same should apply when a wealthy Jew takes Pe'ah before an Ani takes it; it should be exempt from Ma'aser.

TOSFOS REBBI AKIVA EIGER in the Mishnayos in Pe'ah (4:9) asks a number of questions on the Mishneh l'Melech. First, the reason Pe'ah is exempt from Ma'aser is because any Ani is able to take it. If so, it should be exempt from the moment that it is designated as Pe'ah and Ani can take it.

Second, the Mishneh l'Melech himself points out that the Mishnah in Pe'ah (5:2) clearly implies that Leket is exempt from Terumos u'Ma'aseros even *before* the Ani takes it. The Mishnah l'Melech says that it must be that Leket is different than Pe'ah: Leket is exempt from Ma'aser immediately, while only Pe'ah is exempt only when the Ani takes it.

This is problematic, though, because our Gemara -- which says that produce of Matnos Aniyim which a Nochri collects is obligated in Ma'aser -- is discussing not only Pe'ah, but Leket and Shikchah as well! (Rebbi Akiva Eiger points out that there is another way to explain the Mishnah in Pe'ah 5:2.)

(b) RABEINU KRESKAS (cited by Tosfos Rebbi Akiva Eiger there) answers that the Gemara is discussing a city in which there are no Jewish poor people. Therefore, from the moment the owner separated the Pe'ah, the Pe'ah never really took effect, since there were no Aniyim for whom Pe'ah needed to be separated. The Gemara in Chulin (143b) teaches that when there are no Aniyim, it is not necessary to leave Leket, Shikchah, and Pe'ah in one's field merely "for the birds to take." However, TOSFOS (DH A'da'ata) clearly does not share this view.

(c) It is possible to explain that *with regard to a Nochri*, Pe'ah is not considered to be Hefker, because the Nochri has no right to take it. Therefore, even if a Jew later buys it from the Nochri, he must treat it as non-Hefker produce (and separate Terumos u'Ma'aseros from it), since the Kinyan the Nochri had on it was not like a Kinyan from Hefker.

However, if a wealthy Jew takes Leket, Shikchah, or Pe'ah, then -- although it is considered to be theft -- he is not obligated to separate Terumos u'Ma'aseros from it, because from his perspective it can be considered Hefker: if he were to make all of his property Hefker and become poor, he would be entitled to take it rightfully.


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